LEVI v UNISURE PTY LTD

3 On 23 November 1998 the applicant purported to appeal from that decision. On that day she lodged a Notice of Appeal to the Full Court seeking orders:

2. That the decision of the Workers Compensation Appeal Tribunal made on 21 October 1998 to over-turn (sic) the decision of a Review Officer made on 17 December 1997, be quashed.

3. That the decision of the Review Officer to accept the appellants [sic] claim for compensation be restored.

4 No action was taken in relation to the purported appeal until, on 31 August 1999, the appellant issued a document entitled "Interlocutory Application" in which the appellant sought the following orders:

"1. Leave to appeal to the Full Court of the Supreme Court from a decision of a Judge in the Workers Compensation Tribunal pursuant to Section 100 of the Workers Rehabilitation and Compensation Act 1986.

2. Leave to extend the time for setting down an appeal between the abovementioned (sic) parties on the basis of the Notice of Appeal filed herein.

3. Such further or other order as this Honourable Court deems fit."

5 The matter came on before Prior J on 3 September 1999 and His Honour allowed an amendment of the "interlocutory application" to allow the applicant to seek an extension of time and leave to the appeal to the Full Court from the decision complained of.

6 The application sought two quite separate orders. The first order sought was really a qualifying order for the institution of an Appeal. It was required because of s100 of the Act. The second order rather supposed that the Notice of Appeal was, apart from the particular order sought, competent. The second order, if the appeal was competent, was required by R95.11 which relevantly provides:

"95.11(3) (a) Where an appeal has not been set down within 6 months from its institution, or from when the appellant first became entitled to set it down, whichever is the latter, it shall lapse at that time unless the time for setting down has been extended prior to the time set by this Rule expiring, or, where in special circumstances only, such time has been extended after the time limited by this Rule has expired.

(b) In the event of an appeal lapsing pursuant to subrule (a) above, any respondent to that appeal shall bear his own costs of the appeal."

7 The appeal, if it was otherwise competent, had not been set down within six months and therefore had lapsed by operation of the Rule (if the appellant had become entitled to set it down within six months) when application was made to extend time for setting down the appeal.

8 Any application for setting down an appeal after the appropriate period referred to in the Rule requires proof of "special circumstances", although the appellant could also rely upon the provisions of s48(1) of the Limitation of Actions Act: Calvarsei & Rota Forma Pty Ltd v Lawson & Lawson (1995) 184 LSJS 147.

9 The interlocutory application was supported by an affidavit of a solicitor in the employment of the applicant's solicitors, who said that the Notice of Appeal filed on 23 November 1998 had been filed within the time for the appeal provided for in s 100 of the Act and it had been intended by the applicant to file an application for leave to appeal and set down the Notice of Appeal.

10 She also said that the Notice of Appeal had been served on the respondent on 24 November 1998 and a index to the Appeal Book was served upon the respondent on 14 July 1999.

11 The solicitor observed that no application had been made by the respondent to dismiss the appeal for want of prosecution. Of course the respondent did not need to make such an application even if the appeal was competent. The operation of the Rule itself will lead to the lapse of the appeal.

12 I think at the time of issuing the interlocutory application the applicant's solicitors were still under a misunderstanding as to the appropriate procedure to be followed in proceedings of this kind. There seems to have been still an understanding that the filing of the Notice of Appeal made the appeal competent.

13 The solicitor filed a further affidavit on 2 September 1999. In that further affidavit the solicitor recognised the appropriate procedure which should have been followed.

14 More importantly, she indicated in that affidavit that no fault could be attributed to the applicant in relation to the procedure which had been adopted. It was always her firm's instructions to bring an appeal to this Court in accordance with the provisions of the Act.

15 The affidavit is refreshing for its frankness and candour. The solicitor has recognised, appropriately in my opinion, that she was under an obligation to inform this Court that the fault for adopting the incorrect procedure was hers and the partner in the firm in which she is employed. She was under an obligation to indicate that her client was not at fault and she has fully discharged that responsibility.

16 A further affidavit was also sworn by a partner in the applicant's solicitor's firm. He also has accepted responsibility for the failure to observe the procedural requirements in the bringing of this appeal. He has said in his affidavit:

"8. I was not aware of the correct rule of this Honourable Court in relation to the time limits for applying for leave to appeal and in relation to setting down an appeal for hearing, prior to the 10th of August when I was advised by Ms ... ... ... ... of my apparent failures in this regard."

17 It is clear from her affidavits that the respondent was also under a misunderstanding as to the appropriate procedure in this case. After the applicant's solicitor sent a copy of the proposed index to the Appeal Book to the respondent's solicitors she was advised by the respondent's solicitors that the appeal had automatically lapsed because it had not been set down within the time prescribed under the rules. The respondent's solicitors must have wrongly assumed that the appeal was competent.

18 An affidavit has been filed by the applicant. She has confirmed that her instructions were always to appeal from the decision of the Workers' Compensation Appeal Tribunal. Her affidavit shows that she had frequent contact with her solicitors and counsel in relation to the appeal. She has re-financed her house in order to finance the costs which would be associated with the appeal.

19 There can be no doubt, as her solicitors accept, that she is quite blameless in the events that have transpired.

20 She has indicated in that affidavit that she was not advised by her solicitors until 10 August 1999 "that the time for the appeal had in fact lapsed". She was then informed that Law Claims had been notified. She said that she then instructed her solicitors to do everything possible to remedy the situation.

"11. To be denied leave to appeal would cause significant loss to me. Not only would I lose the opportunity for compensation, I would also be denied any opportunity to redress the damage I feel I have suffered to my character and integrity by reasons (sic) of the findings and reasons for the decision of the Tribunal."

22 Although s100 of the Act has been repealed, this matter is still governed by that section of the Act. Section 100(1) provided that a party to proceedings before the Tribunal could, by leave of this Court, appeal against a decision of the Tribunal in those proceedings.

23 Any appeal from the Tribunal is limited to a question of law: s 100(3). An appeal must be instituted within one month after the appellant receives notice of the decision appealed against unless this Court, in its discretion, allows a longer time for the institution of the appeal: s 100(4). Any appeal for which leave is given shall be heard and determined by the Full Court of this Court: s 100(2).

24 Rule 94 governs applications for leave to appeal to the Full Court of this Court. Rule 94.01A provides that where an Act makes any appeal to the Supreme Court subject to obtaining leave from the Court, leave can be sought on an ex parte summons which should be issued within 14 days of the making of the judgment order complained of or within such other time as is provided by the statute: r94.01A(1).

25 That summons is heard by a judge in chambers ex parte or upon whatever notice the court may require the applicant to give to any other interested persons: r 94A.01(2).

26 Whilst leave to appeal is required r 94.01A(3) provides:

"(3) Where any statute limits the time for the institution of an appeal which is subject to leave being obtained from the Court, the appellant may institute the appeal within the time allowed by the statute without leave first being obtained, but the Court may thereafter strike out such appeal if it thinks fit to do so for failure to have obtained leave."

27 Because of the provisions of that Rule it cannot be said that the procedure initially adopted by the applicant was necessarily wrong. Rule 94.01A(3), in my opinion, does allow a party to file a Notice of Appeal notwithstanding leave has not been sought or obtained.

28 The rule is somewhat confusing. It seems to me to be odd that a Rule of Court will allow the filing of a Notice of Appeal prior to the party obtaining leave to appeal, which is a necessary pre-requisite to an appeal being brought.

29 I realise of course that the rule is in its form so as to protect parties who do not obtain leave to appeal in sufficient time to bring the appeal within the time prescribed by the Act, which has authorised the application for leave to appeal itself. An example of that is this particular Act. Section 100(4) provides that the appeal must be instituted within one month after the appellant receives notice of the decision. If an application for leave to appeal is made within the time prescribed by r 94.01A, viz 14 days, it may be that the Court will not dispose of the matter and grant leave in sufficient time to allow the appeal to be brought within the time prescribed by s 100(4).

30 Notwithstanding the intent of the rule I think it can only lead to confusion in its present form. It would be better on the application for leave to appeal if the rule provided for the court to extend the time within which to appeal if an extension was required.

31 That would mean that an applicant would have to seek leave to appeal within 14 days (R95.01A(1)). If leave was obtained and the appeal could not be instituted within the one month the time for the instituting the appeal could be extended.

32 In any event, in this case it is right to say, as the applicant has said, that the appeal was brought within time.

33 However leave to appeal was still required. Again, I think r 94.01A(3) is liable to mislead when it talks of the Court being empowered to strike out the appeal if it thinks fit to do so for failure to have obtained leave. That rather suggests that a party need not obtain leave. The rule could not override the obligations imposed by s 100 of the Act itself which requires the granting of leave before an appeal can be brought.

34 In my opinion, notwithstanding the provisions of r 94.01A(3), the applicant was under an obligation, after filing the Notice of Appeal, to make an application for leave to appeal within the 14 days prescribed by r 94.01A(1).

35 Because of the provisions of r 94.01A, this case lies somewhere between the circumstances where a party has not appealed within time (Pond v WorkCover Corporation (1999) SASC 362) and the case where an appeal has been brought within time but the procedural requirements, after the appeal has been brought, have not been complied with (Jackamarra v Krakouer (1998) 153 ALR 276).

36 The principles which apply to the two circumstances are a little different.

37 Put shortly, a court is more likely to grant a party an indulgence for failing to comply with the rules if the appeal has been brought within time but a procedure not complied with after the appeal has been brought, than in circumstances where the appeal has not been brought within time: Jackamarra v Krakouer (supra).

38 In every case however, where a party seeks an indulgence for a failure to comply with the rules of procedure, and the court is empowered to grant an indulgence, the court will grant that indulgence if it is in the interests of justice so to do. The discretion to extend time exists for the purpose of doing justice between the parties. That is the very reason why power is given to the court to grant indulgences: Gallo v Dawson (1990) 95 ALR 479; Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257.

39 In this case, the fault for the failure to comply with the rules is that of the applicant's solicitors. They mistakenly thought that an appeal could be instituted and prosecuted without leave being obtained. If, however, the Notice of Appeal was competent to institute the appeal, they failed to obtain leave thereafter and failed to set the appeal down within the time prescribed by r 95.11(3). The applicant is blameless. She has always believed that the appeal was proceeding. The solicitors have frankly admitted their own fault and they are to be commended for their frankness. The applicant would suffer irremediable prejudice by being denied the right to apply for leave to appeal. It might be said that she could bring proceedings against her solicitors for their failure to comply with the rules but the potential of an action against a party's own solicitors cannot be said to be a reason, if at all, and certainly not by itself, to refuse an application for an indulgence.

40 It does not seem to me to be just to compel an applicant, who has been faultless, to bring proceedings against some other parties, perhaps in some other court, for a different cause of action and in that other cause of action to have to establish the probabilities of success in the matter in which that party is seeking an indulgence: Williams v F.S. Evans & Anor (1988) 52 SASR 237.

41 Whether a potential cause of action could be a factor to be taken into account in weighing the prejudice which had been caused to the parties to the proceedings need not be decided here. Such a potential cause of action is not a reason to refuse an indulgence for a breach of the rules where the breach is due solely to the applicant's own solicitors.

42 In this case the respondent wrongly assumed that, in fact, the appeal was competent. The respondent relied upon the failure of the applicant to set down the appeal in accordance with r 95.11 rather than the applicant's failure to obtain leave to appeal. The respondent's solicitor has filed an affidavit and been heard on this application. No evidence was led of prejudice. However, Mr Martin who appeared for the respondent argued that the delay since judgment meant if the appeal was successful the respondent will have been denied the opportunity to review the applicant's injuries or disabilities in the period which has elapsed. The respondent has also lost the opportunity of reviewing compensation benefits during that time. He also argued that the respondent was entitled to claim a vested right to retain the judgment: Vilenius v Heinegar (1962) 36 ALJR 200.

43 Mr Martin's submissions are not without weight. In the end it is a question of judgment whether it is in the interests of justice to extend the time within which leave to appeal should be granted. The applicant is without blame. The appropriate parties have accepted responsibility: Pond v WorkCover (1999) SASC 362. A frank and candid explanation for the delay has been given: Revici v Prentice Hall Incorporated [1969] 1 WLR 157. The length of the delay is not insignificant. However the respondent has always been aware of the applicant's intention to prosecute an appeal. The applicant will suffer prejudice if leave is not given. The respondent will potentially suffer prejudice if leave is given.

44 In this case which is not an easy one, it seems to me, because of the assumptions which were wrongly made by both the applicant's solicitors and the respondent, partly induced, I think, perhaps, by a rule in an unfortunate form, it would be in the interest of justice, and justice would be done between the parties, if the indulgence was granted.

45 In this case I am prepared to grant an extension of time within which to seek leave to appeal until the date of the application for leave to appeal.

46 The respondent further argued that leave to appeal should not be granted in this matter because the matter does not raise questions of law. All of the matters raised in the Notice of Appeal, it was said, were matters of fact.

47 In my opinion, having heard the arguments and considered the matter, I am satisfied that the grounds of appeal raise questions of law and that this is a matter where leave to appeal should be granted. I am prepared to grant leave to appeal in accordance with the amended grounds of appeal in the Notice of Appeal exhibited to the affidavit of the applicant's application of 7 September 1999 (SML1).

1. Extend the time within which to seek leave to appeal to 31 August 1999.

2. Grant leave to appeal upon the grounds set out in the draft Notice of Appeal exhibited to the solicitor's affidavit of 7 September 1999.

3. Extend the time within which to appeal to 14 days from today.